Petition for Writ of Certiorari — Kabanuk v. Minnesota

(\) Office-Supreiic Court, us]

85-104 FILED

JUL 18 1985

No. ALEXANDER L STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

DERRICK KABANUK,

Petitioner,

vs.

STATE OF MINNESOTA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF

THE STATE OF MINNESOTA

WILLIAM J. GATTON

808 E. Franklin Avenue

Minneapolis, MN 55404

(612) 871-4886

COUNSEL FOR PETITIONER

QUESTION PRESENTED

Whether an accused juvenile, in

the context of a state juvenile delin-

quency prosecution, is denied due

process of law by a procedure which

permits the determination of guilt to

be made by a judge who did not preside

at the trial nor hear the testimony, but

whose decision is based upon a review

of the record of an earlier hearing

conducted before a referee?

TABLE OF CONTEN''S

Page

PPE ERO PEOSENCEG. . 22s cc ccccsccs i

Bemee OF AVUENOTACISS. 2.2. cc cccvcves ii

EE CEO cece case eseeesenes 1

URE s Behe eee eesesssececes 2

Constitutional and

BEMGUCOEY PEOVIBSAONB. 0 oc cece vcces 2

Statement of the Case............ 6

Reasons for Granting the Writ.... 12

SE ee 30

TABLE OF AUTHORITIES

Court Decisions

Barber v. Page,

EE OR OR 18

Breed v. Jones,

we ES DS Ee) ree 24

Brooks v. Tennessee,

ee ee COUPEE pe eke ce ss eeness 19

California v. Green,

EE ky | 18

Faretta v. California,

ate re CEU P BEE peut aseosncceces 19

ii

In re Fields,

285 Minn. 184,

pee ee Fe Reh ey Mek) Pree 9

In re Gault,

ry a: Pa a el hs Perera eee ee ee 18, 24

Holiday v. Johnston,

SLO Use 2S EAPEA) costo csecvavocns 20

McKeiver v. Pennsylvania,

403 U.S. S28 CA97 Lp nce cecccccccsces 24

In re M.A.P.,

260i BM. ee S44 Tinh. LOTS) wesccies 9

Mattox v. United States,

De Uille Bat TOOEOT 6 666 0 0a 66 844.00 0% 19

Morgan v. United States,

298 U.S. 468 (1936). cccwccncccvces 5

In re Oliver,

Fas Uses Bot CAPOel ss tweak aew ne cees 19

In re Appeal in Pima County,

129 Ariz. 371,

631 P.2d 526 (1981)... cece ee ccccees 26-28

Pointer v. Texas,

SUU Uses SOU SASS) 6 kak Ses RO KARR 18

Regina v. Bertrand,

4 Moo. P.C.N.S. 460,

16 Eng. Rep. 391 (1867) .cccccucsees 13

Swisher v. Brady,

438 U.S. 204 (1978) ...cccees 18, 24-26, 28-29

United States ex rel. Graham

v. Mancusi,

Sor Pewee Sen CEs LOlEl ss bake ceases 14

iii

United States v. Raddatz,

S47 UeBe SGOT CAPSS) a cccccsccsacs 15-16, 21

In re Winship,

SST Usths SES. CLOT OE 6 060664606046 08-8 17, 24

Constitutional Provisions

DOS, OW 6 5k 5 6 6564666 604668 Dae eO iS, a7

AMENGMENt VI... ccc cccccesescccsccecs 18

RBGNGMORE AV «sc cccecssavs Ze ids 206 28, 2S

Statutes

U.8.C. L2S7(3) ce voceseecsesccessess 2

Minn. Stat. 260.023. .ccucesacecsacs 7

Minn. Stat. 260.031 TEUUTETOLELT TS 2-4, 7-9

Minn. Stat. 4€84.70(6)..cccsecvece 8

Minn. Stat. 609.53. crcccascsecsess ry lee

Rules of Procedure

Ruse 25 BE. Bi GOVs CEs vs we cscs 4-6

iv

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

No.

DERRICK KABANUK,

Petitioner,

vs.

STATE OF MINNESOTA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF MINNESOTA

Petitioner, Derrick Kabanuk, prays

that a writ of certiorari issue to review

the judgment of the Court of Appeals of

the State of Minnesota in this case.

OPINIONS BELOW

The opinion of the Minnesota Court

of Appeals is reported at 363 N.W.2d 877

(Minn. App. 1985). The opinion of the

Hennepin County Juvenile Court is not

reported.

JURISDICTION

The judgment of the Minnesota Court

of Appeals was entered on March 12, 1985.

The Minnesota Supreme Court denied

review on May 20, 1985.

The jurisdiction of this Court is

invoked under 28 U.S.C. 1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Amendment XIV:

Section 1. Al persons born or

naturalized in the United States,

and subject to the jurisdiction

thereof, are citizens of the United

States and of the State wherein

they reside. No Stare shall make

or enforce any law which shall

abridge the privileges and immuni-

ties of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or

property without due process of law;

nor deny to any person within its

jurisdiction the egual protection

of the laws.

Minnesota Statute 260.031:

Subdivision 1. The chief judge

a

q

a

or

: qr

Pees

a

fad es

fae = fe

a

Ws

of the judicial district may appoint

one Or more suitable persons to act

as referees. All referees are sub-

ject to the administrative authority

and assignment power of the chief

judge of the district as provided in

section 484.69, subdivision 3, and

are not limited to assignment to

juvenile court. Referees shall hold

office at the pleasure of the judges

of the district court and shall be

learned in the law, except that

persons holding the office of referee

on January 1, 1983, may continue to

serve under the terms and conditions

of their appointment. The compensa-

tion of a referee shall be fixed by

the judge, approved by the county

board and payable from the general

revenue funds of the county not

otherwise appropriated. Part time

referees holding office in the second

judicial district pursuant to this

subdivision shall cease to hold

office on July 31, 1984.

Subd. 2. The judge may direct

that any case or class of cases shall

be heard in the first instance by

the referee in the manner provided

for the hearing of cases by the court.

Subd. 3. Upon the conclusion of

the hearing in each case, the referee

shall transmit to the judge all papers

relating to the case, together with

his findings and recommendations in

writing. Notice of the findings of

the referee together with a statement

relative to the right of rehearing

shall be given to the minor, parents,

guardian, or custodian of the minor

whose case has been heard by the

referee, and to any other person that

the court may direct. This notice

=

may be given at the hearing, or by

certified mail or other service

directed by the court.

Subd. 4. The minor and his

parents, guardians, or custodians

are entitled to a hearing by the

judge of the juvenile court if,

within three days after receiving

notice of the findings of the

referee, they file a request with

the court for a hearing. The court

may allow such a hearing at any

time.

Subd. 5. In case no hearing

before the judge is requested, or

when the right to a hearing is

waived, the findings and recommenda-

tions of the referee become the

decree of the court when confirmed

by an order of the judge. The final

order of the court shall, in any

event, be proof of such confirmation,

and also of the fact that the matter

was duly referred to the referee.

Rule 2, Minnesota Rules of Procedure

for Juvenile Court:

Rule 2.01. Authorization to Hear Cases

A referee may hear, as authorized

by statute, any matter under the juris-

diction of the court in the manner

provided for the hearing of matters by

the court.

Rule 2.02. Objection to Assignment of

Referee

The child's counsel or the county

attorney may object to a referee pre-

siding at a hearing. This objection shall

5

be in writing and filed with the court

within three (3) days after being informed

that the matter is to be heard by a

referee or the right to object is waived.

The court may permit the filing of a

written objection to a referee at any

time. After the filing of an objection,

a judge shall hear any motion and pre-

Side at any hearing.

Rule 2.03. Transmittal of Findings

Upon the conclusion of a hearing the

referee shall transmit to the judge

findings and recommendations in writing.

Notice of the findings of the referee

together with a statement relative to

the right to a review before a judge

shall be given either orally on the

record, or in writing to the child, the

child's counsel, the child's parent(s)

and guardian, and their counsel, the

county attorney and to any other person

that the court may direct.

Rule 2.04. Review

Subd. 1. Generally. A matter which

has been decided by a referee may be

reviewed in whole or in part by a judge.

Subd. 2. Filing. A motion for a

review by a judge must be filed with the

court within ten (10) days after the

referee's tindings and recommendations

have been provided, pursuant to Rule 10.

Subd. 3. Right of Review upon Filing

of Timely Motion.

(A) Right of a Child. The child

is entitled to a review by a judge

in any matter upon which a referee

has made findings or recommendations.

(B) Right of County Attorney.

Lostedienahe

aa ili i

6

The county attorney is entitled to

a review by a judge from any pre-

trial findings or recommendations

of a referee except those dismissing

a petition for lack of probable

cause. The county attorney is not

entitled to a review by a judge after

jeopardy has attached.

(C) Rtgkt of Parent(s) and

Guardian. The child's

parent(s) and guardian are entitled

to a review by a judge of a referee's

findings or recommendations made

after the allegations of a petition

have been proved.

Subd. 4. The Court. The judge may

grant a review at any time before con-

firming the findings and recommendations

of the referee.

Subd. 5. Procedure. A review by a

judge may be on the verbatim recording

made pursuant to Rule 11l or may be de

novo in whole or in part.

Rule 2.05. Order of the Court

The findings and recommendations of

the referee become the order of the court

when confirmed by the judge, subject to

review pursuant to Rule 2.04.

STATEMENT OF THE CASE

Petitioner, Derrick Kabanuk, was

charged with the offense of receiving

stolen property, a cririnal offense under

)

:

Minn. Stat. 609.53, Subd. 1(2) (1982).

Since he was seventeen years old at the

time of the alleged offense, the charge

was prosecuted in a delinquency proceeding

in the Juvenile Court. 1

The matter was assigned by the

Juvenile Court to a referee. A contested

hearing on the charge was held before a

referee of the Juvenile Court on October

26, 1983. At the conclusion of the hear-

ing, the referee found that the charge was

proven.

At this point it should be observed

that Minn. Stat. 260.031, Subd. 2 provides

that the judge of the juvenile court may

direct that cases in the first instance

may be heard by a referee in the manner

provided for the hearing of cases by the

lMinn. Stat. 260.015, Subd. 5 defines

a delinquent child as one who has violated

any state or local law.

8

court. Subdivision 3 of this statute

specifies that upon the conclusion of

the hearing of a case, the referee shall

transmit to the judge ali papers relating

to the case together with his findings

and recommendations. Subdivision 4 of

this statute provides that the minor and

his parents are entitled to a hearing by

the judge of the juvenile court if, within

three days after receiving notice of the

findings of the referee, they file a

2minn. Stat. 484.70, Subd. 6 provides

that a party may object to the assignment

of a referee. However, at the subsequent

hearing on Petitioner's motion for a

trial de novo, Petitioner testified that

he was not advised by either the referee

or by his court-appointed lawyer that he

had the right to object to the assignment

of a referee to hear his case; he also

testified that he was not aware of this

right. Nevertheless, the Court of Appeals

held that he was "deemed" to have waived

the right, because he was represented by

counsel and failed to assert it. In re

D.K., 363 N.W.2d 877, 880 (Minn. App.

1985).

Merit i

eee ats Bad

9

request with the court for a hearing.

Subdivision 5 of the statute provides

that where no hearing before the judge

is requested, or when the right to a

hearing is waived, the findings and re-

commendations of the referee become the

decree of the court when confirmed by

an order of the judge. >

Following the hearing before the

referee, Petitioner filed a request for

a hearing before the judge of the juvenile

court under Minn. Stat. 260.031,:. Subd. 4,

contending that the statute afforded him

a right to a trial de novo before the

juvenile court judge. Petitioner also

based his claim to a trial de novo upon

constitutional grounds, arguing that the

the Minnesota Supreme Court has held

that the findings of the referee are

advisory only. The judge alone decides

the case and renders the judgment.

In re M.A.P., 281 N.W.2d 344 (Minn. 1979);

in re Fields, 285 Minn. 184, 172 N.W.2d

322 (1969).

i iabenhied oe

AN Pa

SS RU PER eet A ek

a Natta

tind aa

lo CARLA 9 ah ARON

10

adjudication of his guilt or innocence

by a judge who did not preside at the

trial, and who did not see or hear the

witnesses, would deny him due process

of law in violation of the Fourteenth

Amendment to the United States Constitu-

tion.

The Juvenile Court denied Petitioner's

motion ‘for a trial de novo and proceeded

to review the matter on the record of the

hearing before the referee. On July 27,

1984, the Juvenile Court Judge issued an

order affirming the finding of the

referee and adjudging the Petitioner to

be guilty of the offense of receiving

stolen property.

Petitioner then appealed to the

Minnesota Court of Appeals. On appeal

Petitioner argued that he was entitled

to a trial de novo under the statutory

provision fora rehearing. Secondly, he

argued that the adjudication of guilt by

Cee naan

11

a judge who did not preside at the trial

violates the Due Process Clause of the

Fourteenth Amendment.

The Court of Appeals, affirmed. First

addressing the statutory issue, the Court

held that the statutory provision for a

rehearing does not require a trial de

novo, but may be satisified by a review

of the record of the hearing before the

referee. Turning to the constitutional

issue, the Court of Appeals held that the

statutory framework permitting the judge

to decide the case by reviewing the

record does not violate the right of the

accused juvenile to due process of law.

Petitioner then sought review of the

decision by the Minnesota Supreme Court.

That Court denied review on May 20, 1985.

12

REASONS FOR GRANTING THE WRIT

1. This case presents an important

question of constitutional iaw which

should be decided by this Court.

In this case Petitioner asserts the

right of the accused to have his trial

conducted before the tribunal which must

determine his guilt or innocence. It is

a right which is fundamental. Indeed,

it would seem that this right inheres

eh AN RG DIE AGRE APR ALAN EAA. Rl ce Nh ST BORE iS eect ay AINSI 5 pAb OA Raise

in the very notion of a trial] itself.

This Court has not previously held

that an accused is entitled, as a matter

of due process, to a trial conducted in

the presence of the trier of fact. Never-

dint:

: theless, the absence of a prior decision

by this Court explicitly announcing this

re

principle does not indicate that the right

does not exist. On the contrary, it

reflects the fact that the right has been

widely assumed to exist and never seriously

challenged.

ee AY r

t eT at LIK

i3

It is, in fact, a deeply engrained

principle of Anglo-American law, expressed

by courts both implicitly and explicitly,

that the accused is entitled to have

his guilt or innocence determined by a

tribunal which has personally heard the

testimony and observed the witnesses.

More than one hundred years ago,

Lord Coleridge stated the view of the

Privy Counsel that a retrial should not

be conducted by reading the notes of the

witnesses' prior testimony:

“The most careful note must

often fail to convey the evidence

fully in some of its most important

elements.... It cannot give the

look or manner of the witness:

his hesitation, his doubts, his

variations of language, his

confidence or precipitancy, his

calmness or consideration;... It

is in short the dead body of the

evidence, without its spirit;

which is supplied, when given

openly and orally, by the ear and

eye of those who receive it."

Regina v. Bertrand, 4 Moo.P.C.N.S.

460, 481, 16 Eng. Rep. 391, 399

(1867).

American courts have expressed the

ee ee en ee

14

same view. In Uniteu States ex rel.

Graham v. Mancusi, 457 F.2d 463 (CA2

1972), the court applied the principle

in federal habeas corpus proceedings to

invalidate a procedure under which a

state appellate court had eetened s con-

viction of the defendant for a lesser

offense when reversal of the criginal

conviction was required because of im-

properly admitted evidence. Speaking

for the court, Judge Friendly stated:

"Due process forbids that, when

an issue of fact is presented, a

man should be sent to prison without

the trier of facts having seen and

heard his accusers and himself, if

he desires to testify, and weighing

their credibility in the light of

their demeanor on the stand. We

would thus reach no different con-

clusion in this case if Graham had

not been constitutionally entitled

to a jury trial. It would still be

for the judge who saw and heard the

witnesses at trial. . . to determine

where the truth lay - not for

appellate judges reading a cold

record." Id. at 469-470.

This Court too has recognized the

principle that, "(t]he one who decides

15

must hear." Morgan v. United States,

298 U.S. 468, 481 (1936).

In United States v. Raddatz, 447

U.S. 667 (1980), this Court considered

the question of whether the Due Process

Clause of the Fifth Amendment requires

that the judge personally hear the

testimony at a suppression hearing, or

whether the judge is permitted to make

the decision on the defendant's motion

for suppression on the basis of his re-

view of the record made before a

inmagistrate. The Court held that it is

constitutionally permissible for the

judge to make his decision on the sup-

pression motion based on the record,

without personally hearing the testimony.

The majority opinion in United

States v. Raddatz, however, provides no

support for the notion that the decision

on guilt or innocence could be made by

one who had not personally heard the

en, Re ee La ar

16

testimony. On the contrary, the clear

implication of Raddatz is that, unlike

a suppression hearing, the trial itself

must be conducted in the presence of the

trier of fact. In fact, the Court in

Raddatz resolved the due process issue

precisely by distinguishing a motion

hearing to suppress evidence from the

criminal trial. As Mr. Chief Justice

Burger stated for the Court:

"This Court on other occasions

has noted that the interests at

Stake in a suppression hearing

are of a lesser magnitude than the

criminal trial itself ... We

conclude that the process due at

a suppression hearing may be less

demanding and elaborate than the

protections accorded the defendant

at the trial itself." Raddatz,

supra, 447 U.S. at 679.

The right of the accused to have his

trial conducted before the trier of fact

is fundamental because it is inherent

in the very concept of a trial. This

right is also fundamental in the sense

that it implicates several other

17

constitutional rights of the accused,

which would necessarily be vitiated or

defeated if the right were denied.

These include the standard of proof be-

yond a reasonable doubt, the right of

confrontation, and the right of the

accused to call witnesses and to testify

in his own defense.

The Due Process Clause protects the

accused against conviction except upon

proof beyond a reasonable doubt. In re

Winship, 397 U.S. 358 (1970). But the

rule requiring proof beyond a reasonable

doubt is undermined when the determination

of guilt is made upon a review of the

written record of earlier testimony.

How can the judge determine the guilt of

the accusea beyond a reasonable doubt

when he has not had the opportunity to

observe the witnesses or to evaluate their

credibility in the light of their demeanor?

As Mr. Justice Marshall remarked in his dis-

18

senting opinion in the case of Swisher

v. Brady, 438 U.S. 204,231 (1977),

"[t])rials-py-transcript can never be more

than trials by substantial evidence."

The defendant's right of confronta-

tion is guaranteed by the Sixth Amend-

ment and made applicable to the states

by the Fourteenth Amendment. Pointer

v. Texas, 380 U.S. 400, (1965); Barber

v. Page, 390 U.S. 719 (1968). The right

of confrontation is applicable in juvenile

delinquency prosecutions. In re Gault,

387 U.S. 1 (1967).

It has long been held that one of the

primary purposes of the Confrontation

Clause is to afford the defendant the

opportunity to challenge his accusers

in a direct encounter before the trier

of fact. See California v. Green, 399

U.S. 156-158 (1970). At the heart of

the constitutional aquarantee is the

right of the accused to compel the witness

19

"to stand face to face with the jury

in order that they may look upon him,

and judge by his demeanor upon the

stand and the manner in which he gives

his testimony whether he is worthy of

belier." Mattox v. United States, 156

U.S. 237, 242-243 (1895). But this

essential purpose of the Confrontation

Clause is wholly negated when the judge

is permitted to decide the case by merely

reviewing the cold transcript of testi-

mony taken before a referee or magistrate.

uch a procedure denies the defendant the

constitutional right of confrontation.

The accused also has the right to

testify in his own defense. In re

Oliver, 333 U.S. 257, 275 (1948): Brooks

v. Tennessee, 406 U.S. 605, 612 (1972);

Faretta v. California, 422 U.S. 806, 819

(1975). But what does this right avail

the accused if he cannot give his testi-

mony face to face with the trier of fact?

20

The testimony of the accused is a

truly critical phase of any trial in

which the defendant chooses to testify.

If the defendant testifies and is

believed, he may assure his acquittal.

Thus the factfinder must make a crucial

assessment of the defendant's credibility.

That assessment, of course, is based in

large part upon the defendant's demeanor

on the stand; the manner in which he

answers the questions, his sincerity,

his forthrightness or evasiveness. But

the factfinder cannot adequately assess

the defendant's truthfulness if he has

not observed the defendant and heard his

testimony. Reading the transcript of

the defendant's testimony is clearly

insufficient. That is why this Court

stated in Holiday v. Johnston, 313 U.S.

342, 352 (1941):

"We cannot say that an appraisal

of the truth of the prisoner's oral

testimony by a master or commissioner

21

is, in the light of the purpose

and object of the proceeding, the

equivalent of the judge's own

exercise of the function of the

trier of the facts."

Even aside from the need to assure

a fair assessment of the defendant's

truthfulness, a decent respect for human

dignity mandates that a person charged

with a criminal offense should be entitled

to relate his version of the facts to the

official entrusted with judging his guilt

Or innocence. "In this respect, the

requirement that a finder of facts must

hear the -estimony offered by those whose

liberty is at stake derives from deep-

seated notions of fairness and human

dignity." United States v. Raddatz,

Supra,at 697 (Marshall, J., dissenting).

The fundamental unfairness of a

system allowing the judge to decide the

case based upon the record of the earlier

testimony before a referee is graphically

demonstrated in the present case.

22

Petitioner was charged with the offense

of receiving stolen property. Under

the specification of the charge, the

State had to prove that he possessed

stolen property, and that he knew it was

stolen. * At the hearing before the

referee, Petitioner testified that he

had not known the property was stolen.

If his testimony was true, Petitioner was

entitled to be acquitted. Having denied

Petitioner's request for a trial de novo,

the judge had to decide the case without

personally hearing the testimony cf the

accused. Accordingly, the judge had no

way of taking Petitioner's demeanor into

“The delinquency petition alleged:

"On July 18, 1983, at 1949 Oliver Avenue

North, Brooklyn Center, Hennepin County,

Minnesota, DERRICK GRANT KABANUK

possessed stolen property, to-wit: one

JMC boys moto-cross racing bicvcle and

one BXC boys moto-cross racing bicycle

having a value of over $150.00, knowing

said property to have been stolen, in

violation of Minn. Stat. 609.53, Subd. 1(1)."

23

account in assessing the truth of

Petitioner's testimony. Yet the judge

found the Petitioner guilty beyond a

reasonable doubt; and the judge's

decision necessarily included a finding

that Petitioner's testimony was not true.

Under these circumstances, Petitioner

quite clearly was denied due process of

law.

2. The constitutional question

presented by this case is important to

the administration of iuvenile justice.

Although the juvenile court system

Originated in the desire to provide a

distinctive procedure and setting to

deal with the problems of youth, in-

cluding those manifested by antisocial

conduct, recent decisions of this Court

have recognized that there is a gap be-

tween the originally benign conception

of the system and its realities. With

24

the exception of McKeiver v. Pennsyl-

vania, 403 U.S. 528 (1971), the Court's

response to that perception has been

to make applicable to juvenile delin-

guency trials the constitutional

guarantees associated with traditional

criminal prosecutions. In re Gault,

387 U.S. 1 (1967); In re Winship, 397

U.S. 358 (1970); Breed v. Jones, 421 U.S.

3919 (1975).

The use of referees in the adjudica-

tory vrocess of juvenile court proceedings

was considered by this Court in the case

of Swisher v. Brady, 438 U.S. 204 (1978).

Swisher involved a Maryland procedure

which authorized juvenile delinguency

cases to be heard by masters, but per-

mitted either party to file exceptions

to the findings and recommendations of

the master, and to obtain a hearing by

the juvenile court judge. At issue in

the case was whether the Double Jeopardy

25

Clause was violated by the procedure

allowing the State to file exceptions

to findings of the master which are

favorable to the juvenile defendant.

The Court held that the Double Jeopardy

Clause was not violated by the Maryland

procedure, because under such a procedure

an accused juvenile is subjected to a

Single proceeding which begins with a

master's hearing and culminates with an

adjudication by a judge. This conclusion

was based on the recognition that, under

Maryland law, the master's findings are

advisory only, and subject to acceptance,

modification, or rejection by the juvenile

court judge.

The holding in Swisher v. Brady was

limited to the question of whether the

Maryland procedure violated the Double

Jeopardy Clause. As Mr. Chief Justice

Burger noted, speaking for the Court:

"It is not usual in a criminal

proceeding for the evidence to be

26

presented and recorded in the

absence of the one authorized

to determine guilt. But if there

are any objections to such a

system, they do not arise from the

guarantees of the Double Jeopardy

Comune. 26. at 216, n. 14.

While the majority in Swisher did not

consider the due process issue arising

under the Maryland procedure, the issue

was addressed in the dissenting opinion.

Mr. Justice Marshall, joined by Mr.

Justice Brennan and Mr. Justice Powell,

expressed the view that the procedure

violated the dye process principle that,

where demeanor evidence is critical, the

ultimate factfinder in a criminal case

must hear the witnesses on whose testi-

money his findinas will be based. Swisher

v. Brady, supra, at 229-232 (Marshall, J.,

dissenting).

Following the decision in Swisher

v. Brady, the Arizona Supreme Court

decided the case of In re Appeal in Pima

County, 129 Ariz. 371, 631 P.2d 526

27

(1981). In that case the juvenile

defendant appealed from an adjudication

of delinquency by the juvenile court,

which overruled a juvenile court

referee's finding that the state had

not proved delinquency beyond a reason-

able doubt. The juvenile's claim was

that the adjudication violated due

mrocess of law.

Noting this Court's decision in

United States v. Raddatz, supra, that

the Due Process Clause of the Fifth

Amendment does not require a district

court judge to hear the testimony

personally at a suppression hearing in

a criminal case, the Arizona Supreme

Court concluded:

"We believe the interests

implicated in an evidentiary hearing

to adjudicate the delinquency of a

juvenile are deserving of more pro-

tection than those implicated in an

evidentiary hearing on a motion to

suppress an involuntary confession."

Id. at 528.

Accordingly, the Court held that the

—_— we at er — ~s

28

reversal by the juvenile court judge

of the referee's finding <nat the charge

was not proven violated the Due Process

Clause, since the judge had not personal-

ly heard the disputed testimony.

The holding in In re Appeal in Pima

County, supra, was limited to the situa-

tion where the judge rejects the findings

of the referee. But the logic of the

Arizona case is equally applicable to

the situation where the judge agrees with

the referee's findings. It is difficult

to discern what logical distinction can

be drawn between accepting the referee's

findings and rejecting them, except that

in the former case the judge is deferring

to the referee. But in either case the

judge is the only officer authorized

to adjudicate the guilt of the accused.

Cf. Swisher v. Brady, 438 U.S. 212, 216.

The present case puts before this

Court the question whether the Due Process

ee eee

29

Clause permits the guilt of an accused

to be determined by a judge who has not

personally heard the testimony. The

issue is of great importance to the

juvenile court system because it calls

into guestion the validity of the

adjudicatory process in those states

which permit juvenile delinquency causes

to be heard by referees or masters,

while entrusting only the judges of the

juvenile court with the power of adjudi-

cation. Since the issue was not decided

by this Court in Swisher v. Brady, 438

U.S. 204, and since the dissenting

justices in that cases indicated that,

in their view, such a procedure raises

a serious question of the denial of due

process of law, Petitioner urges that

the question is appropriate for review

by this Court.

30

CONCLUSION

For the reasons urged herein, it

is respectfully requested that a writ

of certiorari issue to review the

judgment of the Court of Appeals of

the State of Minnesota entered herein.

Respectfully submitted,

WILLIAM J. GATTON

808 E. Franklin Avenue

Minneapolis, MN 55404

Counsel! for Petitioner

APPENDIX

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-84-1423

Hennepin County

Juvenile Court Division Lansing, Judge

‘In the Matter of the

Welfare of D.K.

William Gatton

Legal Rights Center, Inc.

808 E. Franklin Avenue

Minneapolis, Minnesota

55404

Hubert H. Humphrey, III

Attorney General

Thomas L. Johnson

Hennepin County Attorney

Vernon E. Bergstrom

Chief, Appellate Section

Beverly J. Wolfe

Assistant County Attorney

C-2000 Government Center

Minneapolis, Minnesota

55487

Filed March 12, 1985

Wayne Tschimperle, Clerk

Minnesota Appellate Courts

P22 BPerA BSUS

1. Neither Minn. Stat. 8260.031,

subd. 4 (1982), nor constitutional

guarantees of due process accord a

juvenile the right to a trial de novo

before a juvenile court judge after the

case has been heard by a juvenile court

: referee.

2. Appellant waived his right to

Object to a hearing before a referee

because he was represented by counsel

» and failed to assert his objection as

reguired by Rule 2.02 of the Rules of

Procedure for the Juvenile Courts.

Affirmed.

Heard, considered and decided by

te a Lb lett Mth F Bian oo teal .

Lansing, Presiding Judge, Forsberg,

Judge, and Leslie, Judge.

oe £m 2 O

LANSING, Judge

ee St ne

Appellant, a juvenile, appeals from

A AM stirs SP nh 29

A-3

the trial court's order adjudicating

him delinguent on the charge of re-

ceiving stolen property. We affirm.

FACTS

Appellant D.K. was charged with

receiving stolen property consisting

of two children's racing bicycles,

each valued in excess of $600, in

violation of Minn. Stat. 8609.53, subd.

1(2) (1982). A trial on the matter was

held before a juvenile court referee,

during which D.K. was represented by a

public defender.

The referee found the petition had

been proved beyond a reasonable doubt.

D.K. then moved for a new trial before

a judge of the juvenile court, contending

that the fourteenth amendment of the

United States Constitution and Minn.

Stat. 8260.031, subd. 4 (1982), afforded

him the right to a trial de novo before

a juvenile court judge. Section 260.031,

A-4

subd. 4, entitles a juvenile upon

proper request to a hearing before a

juvenile court judge after a matter

has been heard by a referee.

A hearing was held on the motion,

during which D.K. testified that neither

the referee nor his court-appointed

attorney had informed him that he had

the right to have his trial before a

judge of the juvenile court rather than

a referee. He testified that he was

not aware of this right.

The trial court denied D.K.'s re-

guest for a new trial and gave him ten

days to file a motion for review of the

referee's order on the verbatim record.

D.K. then reguested that the juvenile

court judge review the referee's findings

and recommendations. A hearing was held,

and the trial court issued an order

affirming the findings of the referee.

A-5

ISSUES

1. Does Minn. Stat. 8260.031,

subd. 4 (1982), or the due process

clause of the fourteenth amendment of

the United States Constitution mandate

that a juvenile be allowed a trial de

novo by a juvenile court judge after

the case has been heard by a referee?

2. Did appellant waive his right

to object to the assignment of a

referee to hear his case?

3. Is the trial court's finding

that appellant knew or had reason to

know the property was stolen sufficient

to support an adjudication of guilt as

charged?

ANALYSIS

I

Minn. Stat. 8260.031, subd. 4 (1982),

provides as follows:

The minor and his parents,

guardians, or custodians are entitled

to a hearing by the judge of the

A-6

juvenile court if, within three

days after receiving notice of

the findings of the referee, they

file a request with the court for

a hearing. The court may allow

such a hearing at any time.

At issue is the definition of the hearing

éS it is used in the statute. D.K. argues

that "hearing" means a trial de novo.

The State's position is that "hearing"

has a braoder definition that does not

necessarily include a trial de novo and

that a trial de novo is discretionary

with the juvenile court judge. The

State's position is consistent with the

past practice of the juvenile courts and

with Rule 2.04 of the Minnesota Rules of

Procedure for the Juvenile Courts (re-

view by a judge of a proceeding heard

before a referee "may be on the verbatim

recording * * * or may be de novo in whole

Or in part"). Because rules of court may

not abridge or modify substantive rights

provided by statute, see Minn. Stat. 8480.

059, subd. 1 (1982), this court may not

rely solely on Rule 2.04 to determine the

scope of the hearing provided by Minn.

Stat. 8260.031, subd. 4, but rather must

determine the legislature's intent in

drafting the statute.

The nature of the hearing intended

under 8260.031 is not expressly defined

by the statute or by case law. The In-

terim Commission's comment to the pro-

vision, however, supports an interpreta-

tion consistent with Rule 2.04 and with

the juvenile court's past practice.

See Minn. Stat. Ann. 8260.031, Interim

Commission Comment, 1959 (West 1982).

The comment says that the language of

Subdivision 4 is taken from the Hennepin

County Juvenile Court Act, 1957 Minn.

Laws ch. 742, 64, subd. 2, the review

provisions of which did not mandate a

de novo trial. The Act further provided

that "the findings of the referee [are]

prima facie evidence of the facts

ee brr reas nem 5M Peada

cpetaiet mente <r Sener Sipis

2 soe Anion

A-8

contained therein," see id. ch. 742,

$4, subd. 3, indicating that the hearing

was primarily intended to be a review

of the referee's findings, although the

admission of further evidence was not

foreclosed.

The Interim Commission's comment

to Minn. Stat. 6260.031 says, in addi-

tion, that the hearing is "not in the

nature of an appeal, as it is in the

Standard Act," referring to the Standard

Juvenile Court Act prepared by the

National Council on Crime and Delinquency.

The Standard Act provides, in section 7,

for a "hearing de novo" of a referee's

findings and recommendations by a juvenile

court judge upon request. Section 28

refers to a formal appellate court review

of juvenile orders. The comment to the

Minnesota statute thus indicates that

the hearing contemplated under 8260.031

is neither a de novo trial nor a formal

* oO ot. mae i

enh T NE Sy 8 A a ORE

appeal.

This interpretation is consistent

with the legislature's practice of

expressly providing for a new trial

when that is the legislative intent.

See, e.g., Minn. Stat. 8260.291, subd.

2(b) (1982) ("The appeal from a probate-

juvenile court is taken to the district

court which shall try the case de novo")

{amended to reflect the creation of the

Court of Appeals, 1983 Minn. Laws ch.

247, 8111); id. 8 487.30, subd. 1

suse * * * shall provide for a right

of appeal from the decision of the

conciliation court to the county court

for a trial on the merits"); see also

Stuart, Judicial Powers of Non-Judges:

The Legitimacy of Referee Functions in

Minnesota Courts, 6 Wm. Mitchell L. Rev.

65, 86 (1980) (the right to a "trial de

novo" provided adult defendants convicted

by non-lawyer judges is different from

eas ta we

nso whit Teh ISK AR, a torte

vgiciokeoeseos Rees nea

A ect st isi 8 ails LA: Cone

A-10

the corresponding "rehearing before a

judge" given juvenile defendants under

Minn. Stat. 8260.031, subd. 4).

D.K. argues that an adjudication

of guilt by a judge who did not preside

at the trial violates his due process

rights under the United States Constitu-

tion. A juvenile court proceeding has

not been held to be a criminal prosecution

within the meaning of the sixth amendment,

see McKeiver v. Pennsylvania, 403 U.S.

528, 541 (1971), and the applicable due

process standard is "fundamental fairness,"

see id. at 543. The referee that heard

D.K.'s juvenile proceeding was an attorney

licensed under Minnesota law, and the

proceeding was conducted in the same

manner as it would have been before a

judge. In addition, a juvenile has the

right under Minn. Stat. 8484.70, subd. 6

(1982), to object to the assignment of a

referee to hear "a contested trial,

A-11

hearing, motion or petition." Because

this framework adequately protects

juveniles' due process rights, we need

not expand the scope of the hearing

provided under 8260.031 beyond that

intended by the legislature.

Il

D.K. testified at trial that he was

not informed of his right under Minn.

Stat. 8484.70, subd. 6, to object to the

assignment of a referee to hear his case.

He argues that this omission entitles

him to a new trial because he could not

have knowingly and intelligently waived

a right of which he was not aware.

Clearly it would have been preferable if

the referee had advised D.K. of this

important right, whether or not he was

represented by counsel. However, despite

its importance, the right is a statutory

right, not comparable to the fundamental

A AP ew eet AECL ER 0s ee

A-12

constitutional rights for which courts

have traditionally required a knowing

and intelligent waiver on the record.

See, e.g., Johnson v. Zerbst, 304 U.S.

458, 464 (1938) (right to counsel);

Carnley v. Cochran, 369 U.S. 506, 516

(1962) (right to counsel); McCarthy v.

United States, 394 U.S. 459, 466 (1969),

and Boykin v. Alabama, 395 U.S. 238, 243

(1969) (privilege against compulsory

self-incrimination, right to trial by |

jury, right to confront accusers).

Minn. Stat. 8484.70, subd. 6, does

not require a knowing and intelligent

waiver on the record, and the accompanying

procedural rule indicates that the right

to object to a hearing before a referee

is waived if nct affirmatively asserted

in writing. See Minn. R.P. for the

Juvenile Cts. 2.02. Because D.K. was

represented by co. el and failed to

assert this right, he must be deemed to

PD ap 9 ah REO SOLE LAER

D

!

13

have waived it.

III

The mental state required to sustain

a conviction for receiving stolen pro-

perty under Minn. Stat. 6609.53 (1982)

is met if the person knew or had reason

to know that the property was stolen.

The petition charged D.K. with possessing

stolen property "knowing said property

to have been stolen, in violation of

Minn. Stat. 8609.53, subd. 1(1)." The

memorandum attached to the trial court's

order affirming the referee's findings

said D.K. possessed property, "knowing

or having reason to know that the

property was stolen." Based on this

difference in language, D.K. argues that

he was not convicted of the crime with

which he was charged, that he was im-

properly convicted on a finding that he

committed the offense in a manner not

A-14

alleced in the pleading, and that he

was not adequately informed of the

nature and cause of the accusation

against him.

The trial court's memorandum merely

restated the court's conciusion, framed

in the statutory language, that D.K.

was guilty of the offense charged. The

trial court specifically affirmed the

referee's conclusion that the petition

had been proved beyond a reasonable doubt.

D eit S&S 2 O88

A juvenile is not entitled under

Minn. Stat. 8260.031, subd. 4, or under

the due process clause of the United

States Constitution, to a trial de novo

after a proceeding before a referee.

Although the referee should have informed

the juvenile of the right tc object to

assignment of a referee, failure to do

so does not entitle the juvenile to a new

RR ES Sg eR

A-15

trial.

Affirmed.

A-16

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL

DISTRICT

JUVENILE COURT

DIVISION

In the Matter of the Welfare of

DERRICK KABANUK

ORDER AND

MEMORANDUM

D.C. #086100-96

The above-entitled matter came duly

on for hearing before the Honorable

Allen Oleisky, judge of the above-named

Court, on the 23rd day of February, 1984

at 328 Court House, City of Minneapolis,

County of Hennepin, State of Minnesota.

APPEARANCES WERE AS FOLLOWS:

Glen Boyce, Assistant Hennepin County

Public Defender, appeared for and on

behalf of the Petitioner, State of

Minnesota.

A-17

Mr. William Gatton, Attorney at Law

Legal Rights Center, appeared for and

on behalf of the Respondent, Derrick

Kabanuk.

The Court, being duly advised in

the premises, hereby makes the following

Order:

IT IS HEREBY ORDERED:

1. That Respondent's request for a

new trial is hereby denied.

2. That Respondent shall have ten

(10) days after receipt of this order

to file a motion for review of the

Referee's order on the verbatim record.

3. That provided Respondent does

not motion the Court for a review on the

verbatim record, counsel for the State

shall contact the Court to set a dis-

position hearing.

4. That the attached memorandum

Shall be made a part of this Order.

; A-18

BY THE COURT:

/s/

Ailen Oleisky

Judge of District Court

Juvenile Court Division

Dated this 7th day of March, 1984.

A-19

MEMORAMDUM

The Respondent in the present case

was charged with theft and tried before

a Juvenile Court Referee. The Referee

has recommended that the petition be

found proven true. The issue before the

Court is whether Respondent's demand for

a new trial must be granted.

Rule 2.04 of the Juvenile Court Rules

provides for review of a Referee's trial

findings by a Judge. It states in rele-

vant part "A review by a Judge may be on

the verbatim record... or may be de novo

in whole or in part." Rule 2.04 (5).

(Emphasis added.) It is clear that trial

de novo is discretionary rather than

mandatory.

Respondent argues that Minnesota

Statute 8260.031 (4) provides for a trial

de novo. It specifices only that, upon

proper demand a minor is entitled to

"a hearing" by the Judge of the Juvenile

A-20

Court. The scope or nature of a hear-

ing allowed by Minnesota Statute

§260.031 (4) is not, however, defined

by statute or case law. The Interim

Commission Comment to Minnesota Statute

§260.031 (5) cited by Respondent is

insufficient to convince the Court that

a trial de novo, in this situation, is

mandatory. The past practice of this

Court shows that this statute has never

been interpreted to entitle a juvenile,

as a matter of right, to a trial de novo.

Respondent alsw urges the Court to

grant a trial de novo because, as Respon-

dent claims, he was never advised of

his right to object to the trial being

heard by a Referee. The Court is unable

to determine by the record if Respondent

was in fact, ever so advised. However,

Respondent was represented by counsel

and the Court must assume that Respondent's

attorney was fully aware that this right

Rei ttln Rs > Ves ccdrwed 4) Nae

ae RRA eb web dles e

ad pe I av Ge Re ee

a3

existed, and that this right was know-

ingly and intelligently waived.

Finally, Respondent argues that an

adjucication of guilt by a Judge who

has not presided at the trial violates

due process of law. In all trials heard

by Referees, each Respondent is entitled

to all Constitutional protections, that

he or she would have before a judge. A

trial before a Referee is conducted in

precisely the same manner as would be

the case before a Judge. The procedure

for hearings before a Referee and

confirmation by a Judge set forth in

Minnesota Statute §260.031 and Rule 2 of

the Juvenile Court Rules is consistent

with due process requirements.

For the reasons set forth above,

Respondent's request for a trial de novo

is hereby denied.

A-22

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL

DISTRICT

JUVENILE COURT

DIVISION

In the Matter of the Welfare of

DERRICK KABANUK

ORDER

D.C. #081600-96

Tne above-entitled matter came duly

on for hearing before the undersigned,

one of the Judges of the above-named

Court, on May 21, 1984, at 328 Court

House, Minneapolis, Minnesota.

APPEARANCES WERE AS FOLLOWS:

William Gatton, Attorney at Law,

appeared for and on behalf of the

respondent-child.

Glen Boyce, Assistant Hennepin County

Attorney, appeared for and on behalf of

Hennepin County.

Upon all the files, records, pro-

ceedings, together with argument of

counsel made in Court, and legal memo-

randa, the Court makes its Order as

follows:

IT IS HEREBY ORDERED:

1. That Referee Haeg's Order of

October 26, 1983 finding the Respondent

guilty of receiving stolen property is

hereby affirmed.

2. That the attached memorandum

shall be made a part of this Order.

3. That the matter is scheduled for

a Disposition Hearing before Referee

Thomas Haeg on August 16, 1984 at 4:00 p.m.

BY THE COURT:

/s/

Allen Oleisky

Judge of District Court

Juvenile Court Division

Dated this 27th day of July, 1984.

i

ESE

Wier Oa acento te

Pee eer Pe et

A-24

MEMORANDUM

Respondent appeals from the Referee's

Order of May 21, 1984 on three grounds.

Respondent argues that the element of

knowledge has not been proven beyond a

reasonable doubt; that the element of

possession of the stolen BXC bicycle was

not proven beyond a reasonable doubt;

and, the Respondent was denied the effec-

tive assistance of counsel at the hearing

before the referee.

On August 3, 1983, Respondent was

charged with Possession of Stolen Property

knowing said property to have been stolen

in violation of Minnesota Statute Section

609.53 subd. 1(1) (1982). This section

reads as follows: "Any person who

receives, possesses, transfers, buys or

conceals any stolen property or property

Obtained by robbery, knowing or having

reason to know the property was stolen

or obtained by robbery, may be sentenced

tt TE aN

et NE 8 Nt An A PII ly EBLE PIAA. TO A eb BR Ce

asia

A-25

as follows...."

To convict a person for receiving

or concealing stolen property the state

must prove that the respondent received

or concealed the property specified in

the complaint, that the property had

been stolen, and the respondent knew or

had reason to know that the property was

stolen and nevertheless, intentionally

received or concealed it. See Minn. Stat.

6609.53 Subd. 1(1) (1982); see also State

v. Melina, 297 Minn. 342, 345, 210 N.W.

2d 855, (1973) (per curiam) (decided

prior to 1982 amendent which altered

language from statute from "knowing" the

property had been stolen to "knowing or

having reason to know" the property was

stolen).

In the present case, the state provec

beyond a reasonable doubt that the

property involved, a JMC and a BXC bicycle

belonging to David Ralph's children, had

Le A Dane alt witha, tail,

a ea

A-26

been stolen. The state also proved that

the respondent received or had possession

of the JMC bicycle belonging to Mr.

Ralph's daughter, as this was the bike

respondent was trying to sell to DeWayne

Stein.

The state produced the following

evidence to prove that the respondent

also possessed the BXC bicycle. First,

both bicycles were stolen at the same

time. Second, Mr. Ralph testified that

the pedals on the JMC bicycle, when it

was recovered, were those he had altered

and placed on the BXC bicycle prior to

its having been stolen. Next, the state

demonstrated that the handle bars on the

bike that respondent was riding when he

came to sell the JMC bike were the ones

that Mr. Ralph had altered for use on

his son's BXC bike and were the handle

bars that had been on that bike when it

had been stolen. Mr. Ralph had testified

Le BONA AAD Mey GOT

A-27

that these handle bars were very un-

common and that he had had to place a

special order to get them.

The respondent testified that he

received the handle bars from Chuck

Zeck and he produced a receipt to

corroborate his testimony. Respondent

further testified that he bought the JMC

in the same condition it was in when he

tried to sell it and he did not buy the

handle bars from the same person he bought

the bike from.

The evidence regarding the possession

of the BXC is insufficient to support

a finding that the respondent ever possessed

the bike. The fact that the respondent

had two parts of the bike in his possession

at the time of his arrest, does not, prove

beyond a reasonable doubt that the

respondent possessed the BXC in its

entirety.

The final element that the state must

A-28

prove is that the respondent knew or

had reason to know that the property

was stolen and despite that knowledge

intentionally received it. The

respondent stated that he purchased

the JMC from a friend of a friend, but

he would not reveal the friend's identity.

In direct examination the respondent

stated "He told me that he had a friend

who knew where he could buy a bike real

cheap. He told me the price and what

kind of bike it was and everything and

--." Trial transcript at 60, lines 12-15.

Later, On cross-examination, the respon-

dent stated that he paid $125.00 for the

JMC. See Trial Transcript at 73, lines

7-14. Yet, the respondent knew the bike

had a value of at least $200 to $250 as

that is what he was willing to sell it

for. The state demonstrated through two

witnesses that the bike had a value of

$650 to $760. Given the disparity in

A-29

the bike's actual value what the

Respondent paid for it, and what the

Respondent was willing to sell it for,

it is apparent that he had reason to

know that the bike was stolen.

The fact that the respondent parked

his car away from Mr. Stein's house

hecause "I didn't want anybody to trace

it back to my house in case they didn't

buy the bike, and they'd know where the

bike was by identifying our car or

license plate, so I didn't want them to

know where we were from.", Trial Trans-

cript at 70, lines 6-10, also indicates

the respondent knew the bike was stolen

or had reason to know that it was.

Respondent is guilty of possezsion

of stolen property, with a value in

excess of $300 knowing or having reason

to know that the property was stolen.

See State v. Simpson, 298 Minn. 235, 214

N.W.2d 679 (1974) (jury could properly

A-30

infer requisite knowledge and wrongful

intent from evidence that defendant

bought property shortly after it was

stolen for price far below its actual

value); State v. Louis, 285 Minn. 276,

172 N.W.2a 754 (1969) (defendant's lack

of satisfactory explanation for his

possession of stolen property is evidence

he knew it was stolen). All the circum-

stances proved by the state are consistent

aa with a finding of guilty and are incon-

Sistent with any rational hypothesis

except respondent's guilt.

Respondent's final claim is that he

was denied the effective assistance of

counsel in violation of the Sixth Amend-

ment to the United States Constitution

and is therefore entitled to reversal.

The United States Supreme Court has

stated that a defendant making such a

claim must identify the acts or omissions

{

of counsel that are alleged not to have

a eS Bn

A-31

been the result of reasonable profess-

ional judgment. Strickland v. Washington,

35 U.S.L.W. 3066, 3072 (U.S. May 14, 1984).

Further, "the defendant must show that

there is a reasonable probability that,

but for counsel's unprofessional errors,

the result of the proceeding would have

been different." Id. at 3073.

The Eighth Circuit Court of Appeals

has stated:

a defendant is not entitled to

representation that results in an

acquittal, nor is he entitl +d to

the "best possible" representation.

Neither is a defendant entitled,

at the instance of new or substituted

appellate counsel, to have this court

review by hindsight tactical decisions

made by trial counsel in the course

of the trial.

United States v. Rhoads, 617 F.2d 1313,

1319 (8th Cir. 1980).

Respondent ciaims that court-

appointed defense counsel failed to

properly investigate the case and

develop relevant and material exculpa-

tory evidence. To support his argument,

respondent states that defense counsel

should have called Chuck Zeck as a

witness to corroborate respondent's

testimony about the purchase of the

handle bars. Respondent states that

defense counsel should have called a

witness from B.J.'s bike shop to testify

as to how common the handle bars are.

Such testimony would relate only to

the possession of the BXC and not the

JMC. Since respondent was not found

guilty of possession of the stolen BXC,

the failure to produce such evidence did

not prejudice the respondent's case.

Respondent next argues that court-

appointed defense counsel could have and

should have introduced evidence that

pe ee et ee wancr eAighadne Os

spit eb FLA bead ih B26 tie Oy aM eae

A-33

Mr. Ralph originally purchased the JMC

complete from B.J.'s bike shop for

$365.00. Such evidence, while it may

have been helpful, would not eliminate

the fact that respondent purchased the

bike shortly after it had been stolen

for far less than its actual value at

that time.

Next, respondent argues that court-

appointed counsel failed to "properly"

examine respondent while he was on the

witness stand. Defense counsel did try

to elicit from the respondent who he

purchasea the bike from, however respon-

dent refused to answer with anything

other than "a friend of a friend." See

Trial Transcript at 60, lines 10-19.

Respondent cannot now claim that he would

have disclosed the name of his friend at

trial had his attorney asked more questions.

Respondent's failure to disclose informa-

tion requested by his attorney cannot later

A-34

be held to be grounds for reversal.

Respondent finally argues that court-

appointed counsel should have made a

different closing argument. Closing

arguments, like much of the conduct of a

trial, is based on strategy. When a

case is tried before a court without a

jury, it is not uncommon for counsel to

waive closing arguments.

The statement by trial counsel that

"I hold, Your Honor, the evidence is

sufficient to find him not guilty of this

matter.” Trial Transcript at 77, lines

9-10, is an incorrect statement of the

law as it apparently shifts the burden

from the prosecution to the defense. In

front of a jury, such a comment may be

reversible error. However, this case was

tried before a referee; no jury was

present. “The Court, being learned in

the law, is well acquainted with the fact

that the state has the burden of proof

te Sa aa ena tat

A-35

in this case. Such comment, though not

reasonable, did not prejudice the respon-

dent in any way.

The respondent has failed to show

that there is a reasonable probability

that the result of the proceeding would

have been different had counsel acted

differently. Therefore, respondent's

conviction cannot be reversed on the

claim that he was denied effective

assistance of counsel.

EEE

A-36

STATE OF MINNESOTA SUPREME COURT

x COURT OF APPEALS

In the Matter of JUDGEMENT

the Welfare

of D.K. C8-84-1423

Appellate Court

Case Number

081600-96

Trial Court

Case Number

Pursuant to the order of Court hereto-

fore duly made and entered in this cause

it is determined and adjudged that the

order of the Court below, herein appealed

from, to wit, of the District Court within

and for the County of Hennepin be and the

same hereby is affirmed and that judgment

be entered accordingly. A certified copy

of the entry of judgment and the Court's

decision iS§ herein transmitted and made

part of the remittitur.

Dated and signed: FOR THE COURT

June 3, 1985

Dated

Attest: Wayne Tschimperle

Clerk of the

Appellate Courts

By: /s/ Maria Votel

Deputy/Assistant

Clerk

A-37

OFFICE OF

APPELLATE COURTS

FILED

MAY 20, 1985

WAYNE TSCHIMPERLE

CLERK

STATE OF MINNESOTA

IN SUPREME COURT

C8-84-1423

In the Matter of the Welfare of D.K.

ORDER

Based upon all the files, records and

proceedings, herein,

ae IS HEREBY ORDERED that the petition

of D.K. for further review be, and the

same is, denied.

Dated: May 18, 1985.

BY THE COURT:

/s/Douglas K. Amdahl

Chief Justice